People v. Cardona , 47 A.D.2d 850 ( 1975 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 27, 1973, convicting him of possession of gambling records and attempted possession of a dangerous drug in the third degree, upon his guilty plea, and imposing sentence. The appeal brings up for review a decision of the same court, rendered January 12, 1973, which, after a hearing, denied defendant’s motion to suppress evidence. Case remanded to Criminal Term to hear and report on the issue of control of the stairway leading to defendant’s apartment and appeal held in abeyance in the interim. Defendant’s suppression motion was denied on the authority of People v Ernest E. (38 AD2d 394). In that case we found, as a fact, that the main entrance, vestibule and staircase leading to the defendant’s apartment were reserved to the landlord and were not part of the premises rented to the tenants. Police officers in that area were lawfully there with permission of the landlord’s agent and, hence, had a right to seize the narcotics and narcotic implements in open view in the defendant’s apartment. The issue of control of the staircase was insufficiently developed at the suppression hearing. Determination of that question is crucial on whether the police officers had a right to be in the area of the two-family house from which they made their observations. Accordingly, the case should be remanded to Criminal Term to hear and report as to this issue. Latham, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.